In my last blog post I suggested that sending mediation clients off to separate attorneys was not being helpful. In response to this proposition one reader, an attorney and mediator from California, suggested that I had a low opinion of attorneys.
I hope not. I have been a proud member of the New York bar for over 30 years. Being an attorney has given me the opportunity to help people, as a mediator, in ways I would not have been able to if I were not an attorney.
My quarrel is in adopting the thinking that two attorneys somehow provide a better result. I believe two attorneys are in fact more likely to create a legal argument between the couple since their attorneys are unlikely to agree on the answer to any legal question. The only way to determine the “correct” answer is to present the question to a judge, which is what the couple was trying to avoid in the first place.
So, why would a couple need two attorneys to review their agreement, any more than they would need two attorneys to draft their legal documents or file their papers with the court?
Why can’t this couple have one attorney provide them with the information they need to make sure the agreement they are considering accomplishes their desired result and addresses the long-term consequences of their decisions?
Over the last 20 or so years I have helped over 2,000 couples end their marriage without a court battle and have found that in most instances their goals are the same:
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How are we going to divide our assets and liabilities in a way that is fair to each of us?
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How are we going to live separately on the same income that once supported us together?
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How are we going to support and parent our children in a manner consistent with how we did so while living together?
Isn’t the reason why a couple chooses to mediate in the first place due, at least in part, to their desire to avoid a legal battle and keep control over the decisions that will impact their lives? Shouldn’t we then, as peacemakers, do all we can to accomplish this goal and not send them off to separate attorneys?
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Agreed!
97% of divorce cases never get to trial. That’s a statistical fact. The problem is too many start out thinking “I need to win!” or are soon convinced that they do. “Fair” takes a back seat for awhile. This leads to unnecessary duplicate and even triplicate expenses. As a Los Angeles area real estate appraiser this is great for business but it is really a waste. I have seen cases where his appraisal and her appraisal are so far apart that the judge orders a court appointed appraiser. Yikes!
I agree with you, and most of my clients do not choose to hire consulting attorneys. I think we, as a society, are still having a hard time with the notion that two adults could dissolve their marriage in the same way they began it; by working together with mutual respect and understanding and without any need for legal “advice.” When people face divorce, sometimes fear takes over and well-meaning friends and family lead them down that adversarial path where everyone loses. Hopefully we as mediators can change this whole system.